PUBLISH

FILED
United States Court of Appeals
Tenth Circuit

UNITED STATES COURT OF APPEALS

April 4, 2016

FOR THE TENTH CIRCUIT

_________________________________

Elisabeth A. Shumaker
Clerk of Court

MERLINDA PEREA; FRANCINE

PUENTES, as co-personal representatives
of the estate of Jerry Perea, and on behalf
of the minor, B.P.,
Plaintiffs - Appellees.
v.

No. 14-2214

APD OFFICER DAVID BACA; APD

OFFICER ANDREW JARAMILLO,
Defendants - Appellants,
and
CITY OF ALBUQUERQUE;
ALBUQUERQUE CITY POLICE,
Defendants.
_________________________________
Appeal from the United States District Court
for the District of New Mexico
(D.C. No. 1:13-CV-00263-RB-RHS)
_________________________________
Stephanie M. Griffin, Deputy City Attorney, City of Albuquerque Legal Department,
Albuquerque, New Mexico, for Defendants-Appellants.
Santiago E. Juarez, Albuquerque, New Mexico (Cheryl K. McLean, Albuquerque, New
Mexico, with him on the briefs), for Plaintiffs-Appellees.
_________________________________
Before LUCERO, HARTZ, and GORSUCH, Circuit Judges.
_________________________________

LUCERO, Circuit Judge.

_________________________________
Jerry Perea died in 2011 after an incident involving Officers David Baca and
Andrew Jaramillo. The district court denied Baca and Jaramillo qualified immunity
against a Fourth Amendment excessive force claim, and they appealed. We hold that the
officers repeated tasering of Perea after he was subdued constituted excessive force, and
that it was clearly established at the time of the taserings that such conduct was
unconstitutional. Exercising jurisdiction under 28 U.S.C. 1291, we affirm.
I
On interlocutory appeal from the denial of qualified immunity, we take, as
given, the facts that the district court assumed when it denied summary judgment.
Morris v. Noe, 672 F.3d 1185, 1189 (10th Cir. 2012) (quotation omitted). Thus, we
rely on the district courts description of the facts, taken in the light most favorable
to Plaintiff, and do not reevaluate the district courts conclusion that the . . . record is
sufficient to prove these facts. Al-Turki v. Robinson, 762 F.3d 1188, 1191 (10th
Cir. 2014). The facts as stated by the district court are as follows.
On March 21, 2011, Merlinda Perea called 911 and told the operator that her
son, Perea,1 was on very bad drugs and that she was afraid of what he might do.
Around the same time, a neighbor also called 911, reporting that Perea was pacing in
his yard, clutching a Bible, and asking forgiveness of a higher power. Baca and

For clarity, we refer to Jerry Perea as Perea and Merlinda Perea as

Merlinda Perea.
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Jaramillo were sent to perform a welfare check. The officers were informed that they
were responding to a verbal fight and that no weapons were involved. They were
also informed that Perea suffered from mental illness and may have been on drugs.
Upon arrival at the home, the officers were told that Perea recently left on his
bicycle, that he was acting up, and that Merlinda Perea was afraid for Pereas
welfare. In separate patrol cars, Baca and Jaramillo began to search for Perea in case
he was a danger to himself. The officers located Perea pedaling his bicycle. Perea
saw the patrol car and began to pedal faster, at which point Jaramillo turned on his
emergency lights. According to Baca, Perea did not stop, and instead pedaled
through a stop sign without slowing down.
The officers used their patrol cars to force Perea to pedal into a parking lot.
Jaramillo left his vehicle to pursue Perea on foot. After a brief chase, Jaramillo
pushed Perea off his bicycle. The officers did not tell Perea why they were following
him or why he was being seized, and they never asked Perea to halt or stop. After
pushing Perea off his bicycle, Jaramillo reached for Pereas hands in an attempt to
detain him. Perea struggled and thrashed while holding a crucifix.2 After Perea
began to struggle, Baca told Jaramillo to use his taser against Perea.
Jaramillo complied and first shot Perea in the chest with his taser on probe
mode. Probe mode is used to subdue an intended target through electric shocks

The record is silent regarding the size or import of the crucifix, except that
Jaramillo at first could not discern what object was in Pereas hand. Regardless, the
district court determined that possessing the crucifix did not amount to being
armed.
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designed to cause immobility. When the initial shot proved ineffective, Jaramillo put
the taser in stun or contact mode, which is used to gain the targets compliance
through the administration of pain. Jaramillo tasered Perea nine additional times, for
a total of ten taserings in less than two minutes. At some point before the taserings
stopped, Baca and Jaramillo were able to get Perea on the ground on his stomach,
with both officers on top of him, effectively subduing him. After the taserings had
concluded, Baca called an ambulance and a field supervisor to the scene as required
by the Albuquerque Police Department taser policy.
While waiting for the ambulance, the officers noticed that Perea had stopped
breathing and was turning gray. The officers successfully performed CPR, and Perea
began to breathe normally. However, when Perea heard the sirens from the
approaching ambulance, he began to struggle and started to scream and ask God for
forgiveness. Upon arrival, the paramedics attempted to treat and calm Perea, but he
stopped breathing again and his pulse stopped. Perea was transported to the hospital
and pronounced dead a short time later.
Appellees, representing Pereas estate, filed suit against Baca, Jaramillo, the
Albuquerque Police Department, and the City of Albuquerque. As relevant to this
appeal, Appellees alleged excessive force against the officers for pushing Perea off
his bicycle and for tasering him ten times. Baca and Jaramillo moved for summary
judgment based on qualified immunity. The district court granted qualified immunity
as to the bicycle-related claim, but denied it as to use of the taser. Baca and
Jaramillo timely appealed the denial of qualified immunity.
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II
We have jurisdiction over an appeal from the denial of qualified immunity
only [t]o the extent [the] appeal turns on an abstract issue of law, RooseveltHennix v. Prickett, 717 F.3d 751, 753 (10th Cir. 2013). We review those issues de
novo. Morris, 672 F.3d at 1189. As noted supra, we rely on the district courts
description of the facts, taken in the light most favorable to Plaintiff, and do not
reevaluate the district courts conclusion that the . . . record is sufficient to prove
these facts. Al-Turki, 762 F.3d at 1191.
Appellants assertion of qualified immunity creates a presumption that they are
immune from suit. See Cortez v. McCauley, 478 F.3d 1108, 1114 (10th Cir. 2007)
(en banc). To overcome this presumption, Appellees must show that (1) the officers
alleged conduct violated a constitutional right, and (2) it was clearly established at
the time of the violation, such that every reasonable official would have
understood, that such conduct constituted a violation of that right. Mullenix v.
Luna, 136 S. Ct. 305, 308 (2015).
We first determine whether the officers repeated tasering of Perea after he had
been subdued constitutes a violation of the Fourth Amendment right to be free of
excessive force. Holding that it does, we then consider whether it was clearly
established, at the time of the violation, that such conduct was unconstitutional.
Because it is clear from this circuits precedent that using disproportionate force, in
this case a taser, against a subdued misdemeanant is a violation of the Fourth
Amendment, we affirm the denial of qualified immunity.
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A
We evaluate excessive force claims under an objective reasonableness
standard, which we judge from the perspective of a reasonable officer on the scene.
Graham v. Connor, 490 U.S. 386, 396-97 (1989). To determine if an officers actions
were objectively reasonable, we carefully consider the totality of the circumstances,
including the severity of the crime at issue, whether the suspect poses an immediate
threat to the safety of the officers or others, and whether he is actively resisting arrest
or attempting to evade arrest by flight. Id. at 396. An [a]ssessment of the degree
of force actually used is critical to the question of whether the force was excessive.
Grauerholz v. Adcock, 51 F. Appx 298, 300 (10th Cir. 2002) (unpublished) (citing
Tennessee v. Garner, 471 U.S. 1, 8-9 (1985)).
The first factor we consider, the severity of Pereas crime, weighs heavily
against the use of anything more than minimal force. That the officers were
performing a welfare check, and that they were not looking for him because they
suspected he had committed a crime prior to finding him, weighs heavily against the
use of significant force. Cf. Fisher v. City of Las Cruces, 584 F.3d 888, 895 (10th
Cir. 2009) (noting that detainees commission of a petty misdemeanor weighed in
favor of using minimal, if any, force). Nevertheless, the officers saw Perea violate
Albuquerque traffic ordinances by pedaling through a stop sign, which they argue
justified using force to effect Pereas arrest. See Atwater v. City of Lago Vista, 532
U.S. 318, 322 (2001) (officers may arrest suspect for misdemeanor traffic violation);
Gross v. Pirtle, 245 F.3d 1151, 1158 (10th Cir. 2001) ([O]fficers may use some
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degree of physical coercion . . . to effect an arrest.). Although the officers are

correct that an officer can effect an arrest for even a minor infraction, Pereas minor
offenseat mostsupported the use of minimal force. See Fogarty v. Gallegos, 523
F.3d 1147, 1160 (10th Cir. 2008) (because detainee had committed only a petty
misdemeanor, the amount of force used should have been reduced accordingly).
Instead, the officers used a taser against Perea ten times in two minutes. Repeated
use of the taser exceeded the minimal force that would be proportional to Pereas
crime. Thus, the first Graham factor weighs in Pereas favor.
The second factor, whether Perea posed an immediate threat to the safety of
the officers or others, similarly weighs against the officers. The officers do not argue
that Perea was a danger to anyone other than himself before they attempted to effect
an arrest. After that point, any threat posed stemmed from Perea resisting arrest after
the officers pushed him from his bicycle without warning or explanation. His
physical reaction to an unexplained arrest is properly considered under the third
Graham factor. Because the officers do not argue that Perea posed a threat before
they initiated the arrest, the second Graham factor weighs in Pereas favor.
The third factor, whether Perea resisted arrest, weighs in favor of the use of
some force during the period in which Perea was resisting. However, the relevant
inquiry is whether the taser use was reasonable and proportionate given Pereas
resistance. Cortez, 478 F.3d at 1126 ([T]he excessive force inquiry evaluates the
force used in a given arrest or detention against the force reasonably necessary to
effect a lawful arrest or detention under the circumstances of the case.). Pereas
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resistance (thrashing and swinging a crucifix) did not justify the officers severe
response. Perea was pushed off of his bicycle by police and then tasered repeatedly
without explanation. Though some force would be justified to get Perea under the
officers control, the district court determined that a reasonable jury could find that
Jaramillo continued to use the taser on Perea even after the point where it could be
considered necessary or even debatably reasonable. Although use of some force
against a resisting arrestee may be justified, continued and increased use of force
against a subdued detainee is not. See Dixon v. Richer, 922 F.2d 1456, 1463 (10th
Cir. 1991). As the district court concluded:
[T]he situation was not static over the course of the ten taserings. When
Officer Jaramillo first engaged the Taser, he shot Mr. Perea in the chest.
At the time, Mr. Perea was trying to ward off the officers with his
crucifix. . . . At some point, however, Mr. Perea fell and the officers
pushed him to the ground with his arms under his body. One officer was
on the upper part of his body while the second officer was on his legs.
Officer Jaramillo continued to taser Mr. Perea in the back again and
again until he pulled his arms out and handcuffed both hands.
The officers tasered Perea once in probe mode and nine times in stun mode
within the span of two minutes, continuing after Perea had been effectively subdued.
Even if Perea initially posed a threat to the officers that justified tasering him, the
justification disappeared when Perea was under the officers control. It is not
reasonable for an officer to repeatedly use a taser against a subdued arrestee they
know to be mentally ill, whose crime is minor, and who poses no threat to the

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officers or others.3 Because the officers repeated use of the taser cannot be described
as reasonable, at least after the point Perea was subdued, the third Graham factor
weighs against the officers.
Viewing the facts as stated by the district court in the light most favorable to
Appellees, Jaramillo and Bacas actions were objectively unreasonable. Perea was
tackled to the ground forat mosta traffic infraction. He posed no threat to the
officers or others until the officers initiated the arrest. The officers then tasered him
repeatedly despite not explaining what they were doing or why they were attempting
to subdue him. Most egregiously, they continued tasering Perea after he was
effectively subdued and brought under the officers control. The repeated use of the
taser against a subdued offender is clearly unreasonable and constitutes excessive
force under the Fourth Amendment.
B
Having concluded that the officers conduct violated the Fourth Amendment,
we next address whetherat the time of the events of this caseit was clearly
established that the officers actions constituted excessive force. It is clearly
established that specific conduct violates a constitutional right when Tenth Circuit or
Supreme Court precedent would make it clear to every reasonable officer that such
conduct is prohibited. Mullenix, 136 S. Ct. at 308; Cavanaugh v. Woods Cross City,
3

Baca and Jaramillo argue that the district court erred in finding that Perea
was effectively subdued. We do not have jurisdiction to reevaluate the district
courts conclusion that the . . . record is sufficient to prove that he was subdued. AlTurki, 762 F.3d at 1191.
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625 F.3d 661, 666 (10th Cir. 2010). However, the qualified immunity analysis
involves more than a scavenger hunt for prior cases with precisely the same facts.
Casey v. City of Fed. Heights, 509 F.3d 1278, 1284 (10th Cir. 2007). The more
obviously egregious the conduct in light of prevailing constitutional principles, the
less specificity is required from prior case law to clearly establish the violation. Id.
The Supreme Court has cautioned circuit courts not to define clearly established law
at a high level of generality, but to focus on whether the violative nature of
particular conduct is clearly established. Mullenix, 136 S. Ct. at 308.
It isand was at the time of Pereas deathclearly established law in the
Tenth Circuit that the use of disproportionate force to arrest an individual who is not
suspected of committing a serious crime and who poses no threat to others constitutes
excessive force. Fogarty, 523 F.3d at 1160; Casey, 509 F.3d at 1281, 1285 (use of
force, including a taser, against a suspect who committed only a nonviolent
misdemeanor, and who did not struggle against officers until the officers employed
force, was unlawful). More specifically, it is likewise clearly established that
officers may not continue to use force against a suspect who is effectively subdued.
See, e.g., Fancher v. Barrientos, 723 F.3d 1191, 1201 (10th Cir. 2013) (although a
single shot by an officer may have been justified, the following six shots were clearly
unlawful because they occurred after arrestee no longer posed a threat of serious
harm); Dixon, 922 F.2d at 1463 (continuing to strike detainee after he had been
subdued was clearly unconstitutional); Herrera v. Bernalillo Cty. Bd. of Cty.
Commrs, 361 F. Appx 924, 929 (10th Cir. 2010) (unpublished) (use of force against
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detainee who officers initially believed would flee, but who demonstrated that further
flight was unlikely, was clearly excessive); Gouskos v. Griffith, 122 F. Appx 965,
977 (10th Cir. 2005) (unpublished) (officers continued use of force against a
subdued arrestee precluded qualified immunity).4 The district court determined that
there was sufficient evidence in the record for a reasonable fact finder to conclude
that the officers continued to taser Perea after he was subdued. And our precedent is
clear that continued use of force after an individual has been subdued is a violation of
the Fourth Amendment. We must accordingly conclude that continuing to taser
Perea, a subdued misdemeanant, violated clearly established law.

Appellants cite cases holding that the use of a taser against misdemeanants
did not violate clearly established law. See, e.g., Hinton v. City of Elwood, 997 F.2d
774, 781 (10th Cir. 1993) (use of taser multiple times was justified against an
arrestee who was actively and openly resisting). They also observe that there is no
authority specifically holding that using a taser against an individual ten times in two
minutes is unlawful. Appellants are correct that we have never held that use of a
taser, in and of itself, constitutes excessive force. But disproportionate use of a taser,
and repeated use of a taser against an effectively subdued individual, are clearly
established constitutional violations. Although we are deeply troubled by the sheer
number of times the officers deployed the taser in under two minutes, we do not set a
specific limit on the number of times an arrestee may be tased within a given time
interval. We simply affirm the district court holding that, under our precedent, no
reasonable officer could conclude that continuing to taser a subdued detainee is
constitutional.
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III
The judgment of the district court is AFFIRMED.

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